Exhibit 2.5
LIMITED GUARANTY
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THIS LIMITED GUARANTY, dated December 5, 1997 (the "Guaranty"), is
executed by BANKAMERICA CORPORATION, a Delaware corporation ("Guarantor"), with
its principal executive offices in San Francisco, California, to and for the
benefit of AMERICAN SAVINGS BANK, F.S.B. ("Purchaser"), and its successors and
assigns.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Bank of America, FSB, a Federal Savings Bank ("Seller"), and
Purchaser entered into a Purchase and Assumption Agreement dated as of May 26,
1997 (as amended to the date hereof, the "Purchase Agreement") for the purchase
and sale of certain assets and the assumption of certain liabilities of Seller;
and
WHEREAS, Guarantor is the ultimate parent company of Seller and will
thereby receive substantial benefits from the Purchase Agreement and the
transactions contemplated thereby; and
WHEREAS, Guarantor, as a material inducement to Purchaser to perform
its obligations under the Purchase Agreement, is providing this Guaranty to
ensure that Seller fully and punctually performs its obligations under the
Purchase Agreement and other agreements, instruments, certificates and other
documents that have been or will be executed by Seller pursuant to or in
connection with the Purchase Agreement (the Purchase Agreement, together with
such other agreements, instruments, certificates and other documents executed by
Seller from time to time, referred to collectively as the "Purchase Documents");
and
WHEREAS, Guarantor has received, reviewed and approved the forms of
the Purchase Agreement and certain of the other documents subject to this
Guaranty; and
WHEREAS, Guarantor has independently conducted such investigation and
due diligence as it has deemed necessary with respect to the Purchase Agreement
and the transactions contemplated thereby and all other matters and
circumstances relating thereto and to all documents referred to therein;
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
1. For the purposes of this Guaranty, "Guaranty Period" means the
period beginning on the Closing Date (as defined in the Purchase Agreement) and
ending on the fifth anniversary of the Closing Date. In the event that Seller's
Net Worth (as defined below) is below $250,000,000 at any time during the
Guaranty Period or Seller at any time during the Guaranty Period is not "well
capitalized" as such term is currently defined by the regulations of the Office
of Thrift Supervision under 12 C.F.R. (S)565.4(b) (each, a "Triggering
Condition"), Guarantor irrevocably, unconditionally and absolutely guarantees
the due and punctual observance and performance, within five days after written
notice from Purchaser, of all of the obligations (collectively, the "Guarantied
Obligations") of Seller under the Purchase Documents, whether according to the
present terms thereof or pursuant to any change or changes in the terms,
covenants and conditions thereof now or at any time hereafter made or granted by
Seller with or without the consent of Guarantor, and whether said Guarantied
Obligations were to be performed before, on or after the Triggering Condition.
For purposes of this Guaranty, the term "Net Worth" of Seller means the sum of
common stock, additional paid in capital, preferred stock and retained earnings
accounts of Seller determined in accordance with generally accepted accounting
principles applied in the preparation of Seller's audited financial statements.
Guarantor's liability under this Guaranty shall be limited to Ninety Million
Five Hundred Thousand Dollars ($90,500,000) and shall continue in effect beyond
the Guaranty Period as to any claims arising during the Guaranty Period.
2. Guarantor waives diligence, presentment, protest, notice of
dishonor, demand for performance, extensions of time of performance, notices of
acceptance of this Guaranty, nonperformance and indulgences and notices of every
other kind (except as expressly provided herein) and consents and agrees that
the obligations and liabilities of Guarantor hereunder shall not be released,
impaired or otherwise affected, with or without the consent of Guarantor, by (a)
any and all forbearances and extensions of the time of performance (including
multiple extensions) by Seller or any other guarantor or obligor of the
Guarantied Obligations, (b) any and all changes in the terms, covenants and
conditions in the Purchase Documents hereafter made or granted, (c) any and all
releases or discharges of or substitutions for Seller or any other guarantor or
obligor of the Guarantied Obligations, (d) any and all waivers of any of the
terms, covenants or conditions set forth in any of the Purchase Documents or
this Guaranty, (e) any election or elections by Purchaser to pursue or enforce,
or not to pursue or enforce, any particular right or remedy against Seller, (f)
the acts or omissions of Seller or Purchaser relating to the Purchase Documents
or the transactions contemplated thereby, and (g) any other cause whether
similar or dissimilar to the foregoing, it being the intention hereof that
Guarantor shall remain liable in accordance with the terms hereof
notwithstanding any act, omission or thing which might otherwise operate as a
legal or equitable discharge of a guarantor or surety.
3. Guarantor agrees that this Guaranty may be enforced by Purchaser
without first or concurrently proceeding against Seller or any other guarantor
or obligor of the Guarantied Obligations, and notwithstanding any subordination
of the Guarantied Obligations to the obligations of Seller to any other party.
However, nothing herein contained shall prevent Purchaser from proceeding on the
Purchase Documents, with or without making the Guarantor a party to such
proceeding, or from exercising any other rights and if such proceeding or other
remedy is availed of, only the net proceeds therefrom, after deduction of all
charges and expenses of every kind and nature whatsoever in accordance with the
requirements of applicable law, any order or judgment of a court or arbitrator,
and the Purchase Documents, shall be applied in reduction of the amounts due on
this Guaranty and Purchaser shall not be required to institute or prosecute
proceedings to recover any deficiency as a condition of payment hereunder or
enforcement hereof.
4. Guarantor agrees that Guarantor's obligations under this Guaranty
shall not be impaired, modified, changed, released or limited in any manner
whatsoever by any impairment, modification, change, release or limitation of the
liability of Seller or its estate in bankruptcy or any other guarantor or
obligor of the Guarantied Obligations resulting from the operation of any
present or future provision of the federal bankruptcy code or other similar
statute, or from the decision of any court with respect to any such statute.
5. Guarantor agrees to pay or reimburse Purchaser on demand for all
fees and expenses incurred by Purchaser in connection with the enforcement,
attempted enforcement or assertion of rights by or for Purchaser under this
Guaranty, including reasonable attorneys' fees.
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6. Guarantor agrees that the rights and remedies of Purchaser under
this Guaranty and the Purchase Documents are cumulative and not exclusive and
may be exercised in whole or in part and in any order and at any time or times
as Purchaser shall determine.
7. Guarantor agrees that the obligations of Guarantor under this
Guaranty shall be continuing obligations and that a claim shall be deemed to
arise in respect of each breach or default under the Purchase Documents and that
Guarantor will from time to time deliver, upon request of Purchaser,
satisfactory acknowledgments of Guarantor's continued liability hereunder.
8. Guarantor agrees that the terms of this Guaranty may not be
modified or amended except by a written agreement executed by Guarantor and
Purchaser.
9. Guarantor agrees that any notice or demand to be given or served
under this Guaranty to Guarantor will be effective if issued in writing to the
Guarantor at its addresses noted below or at such other address as is from time
to time designated in writing by the Guarantor and shall be deemed to have been
sufficiently given or served for all purposes when delivered:
BankAmerica Corporation
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Assistant Treasurer
Corporate Treasury
#3170
10. Guarantor agrees that this Guaranty shall be governed by and
construed in accordance with the laws of the State of California, and such laws
shall be applied without giving effect to California law pertaining to conflict
of laws, and agrees that any controversy or claim arising out of or relating to
this Guaranty shall be subject to the arbitration provisions of Section 13.13 of
the Purchase Agreement in the same manner as if Guarantor was the Seller for the
purposes thereof.
11. Guarantor agrees that this Guaranty shall inure to the benefit
of, and may be enforced by, Purchaser or by a successor to Purchaser's rights
hereunder.
12. Guarantor agrees that the obligations of Guarantor under this
Guaranty are independent of the Purchase Documents and shall be binding upon
Guarantor and its heirs, personal representatives, successors and assigns. In
connection with the foregoing, but in no manner in limitation of the generality
thereof, Guarantor agrees that separate claims and actions may be brought and
prosecuted against the Guarantor and any endorsers, guarantors and other
obligors for enforcement of such obligations, irrespective of whether any claim
or action is brought against Seller or any other party or whether Seller or any
other party is joined in any claim or action.
13. Guarantor agrees that, notwithstanding any modification,
discharge or extension of the Purchase Documents or any amendment, modification,
stay or cure of Purchaser's rights under the Purchase Documents which may occur
in any bankruptcy or reorganization case or similar proceeding concerning
Seller, and whether assented or not assented to by Purchaser, Guarantor shall be
obligated hereunder to perform, observe and discharge the Guarantied Obligations
and under the terms of this Guaranty all as in effect on the date of this
Guaranty; and furthermore, understands and acknowledges that by virtue of this
Guaranty, Guarantor has specifically assumed any and all risks of bankruptcy or
reorganization cases or proceedings with respect to Seller.
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14. Guarantor represents and warrants that (i) the execution,
delivery and performance by Guarantor of this Guaranty do not and will not
contravene (a) any law or (b) any contractual restriction binding on or
affecting Guarantor and that is material to Guarantor's business; (ii) this
Guaranty constitutes the legal, valid and binding obligation of Guarantor and is
enforceable against Guarantor in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws affecting the enforcement of creditors' rights generally and as may
be limited by the exercise of judicial discretion in applying principles of
equity; (iii) there is no pending or threatened action or proceeding affecting
Guarantor before any court, governmental agency or arbitrator which may
materially adversely affect the financial condition or operations of Guarantor
or which purports to affect the legality, validity or enforceability of this
Guaranty; and (iv) there are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
IN WITNESS WHEREOF, Guarantor has duly caused this Guaranty to be
executed as of the date first above written.
BANKAMERICA CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Senior Vice President
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